References and vendettas

Justice Isa case raises questions about transparency and implications of using presidential references


Hasnaat Malik May 02, 2021
Supreme Court Judge Justice Qazi Faez Isa. PHOTO: FILE

ISLAMABAD:

Soon after the judgment in the Faizabad sit-in case in February 2019, unconfirmed news began to surface that the Pakistan Tehreek-e-Insaf (PTI)-led government was planning to file a presidential reference against outspoken Justice Qazi Faez Isa.

Several review petitions were filed by different political parties and the government institutions against that judgment wherein he questioned the conduct of civilian and military functionaries. Some petitioners even raised the question that Justice Isa, by the authoring judgment, had violated his code of conduct.

In May 27, 2019, a message was being circulated among lawyers and media persons against undeclared properties of superior courts judges and their spouses without mentioning their names. It was also stated in that message that the law ministry had no option but to file a reference against them in the Supreme Judicial Council (SJC).

On same day, I contacted the law ministry to verify facts pertaining to that message. A senior law ministry confirmed that a reference was already filed against couple of superior courts judges. However, he did not reveal names of those judges. On May 28, 2019 these facts were reconfirmed and I filed a news report stating as such for The Express Tribune. Later, discussions began about filing of the presidential reference by PTI led government on social media.

Two days later, Justice Qazi Faez Isa had written letter to President of Pakistan Arif Alvi seeking a copy of the reference against him. In June, 2019, Supreme Judicial Council led by ex chief justice of Pakistan Asif Saeed Khosa started proceedings on the reference filed against Justice Isa.

In the meanwhile, representatives of superior bars strongly reacted over the federal government’s move against a Supreme Court judge. They termed the reference, ‘an attack on the independence of the judiciary.’

Both the rival groups of lawyers – the Asma Jahangir group and the Hamid Khan group –united against the government’s move. The Pakistan Bar Council (PBC) – the apex regularity body of lawyers – also started arranging conventions and protests against the reference all over the country. Lawyers belonging to small provinces started to lead the campaign against the presidential reference.

Despite distributing millions of rupees among bars, the Federal Minister for Law Dr Farogh Naseem could not get support of the majority of lawyers for the reference. An Action Committee of Lawyers was formed by the pro government lawyers to counter campaign in favour of Justice Isa but in vain.

During the summer vacations in 2019, the SJC led by ex CJP Khosa continued its proceedings and issued show cause notice to Justice Isa in the month of July, 2019.

In the meanwhile, the council issued notice to Justice Isa over a complaint for writing a letter to President of Pakistan. However, the notice was withdrawn.

 

In August 2019, Justice Isa filed a constitution petition in the Supreme Court against the presidential reference seeking his removal on account of misconduct for not declaring his family’s foreign properties in his wealth statement.

 

He also requested the top court to issue a restraining order over Supreme Judicial Council proceedings till the court decides on his petition.

 

Justice Isa, in his petition, asked the court to dismiss the references filed against him with “malice, ulterior motives and to achieve a collateral purpose.” He also argued that the references undermine the independence provided to the judiciary under the constitution.

 

A total of 13 respondents were named in the petition including government functionaries, departments and bars.

 

Justice Isa raised serious questions over the conduct of president, prime minister, law minister, Attorney General of Pakistan and others. Likewise, the SC judge accused conduct of SJC, especially its chairman Asif Saeed Khosa, as biased.

Justice Isa said that he is not answerable for his wife or adult children nor is he under any obligation to disclose any information concerning them.

Similarly, all superior bars and journalists supreme body (PFUJ) also challenged the presidential reference in the apex court.

In the meanwhile, one member of the SJC Azmat Saeed Sheikh retired in the month of September 2019. Former CJP Khosa formed a seven-member larger bench led by Justice Umar Ata Bandial to hear constitution petitions against the presidential reference regarding the removal of Justice Isa.

On the other hand, Justice Isa engaged Muneer A Malik, Babar Sattar and Salahuddin Ahmed as counsels to argue his case before the apex court.

On the first hearing, Muneer A Malik raised objection on two of the judges in the bench: Justice Sardar Tariq Mehmood and Justice Ijaz ul Ahsan. He stated that both judges have personal interest and therefore should not be included.

If Justice Isa was removed then Justice Sardar Tariq Masood could have become CJP, he argued. Likewise, in case of Justice Isa’s removal, tenure of Justice Ahsan as CJP could have been extended. Therefore, both judges finally recused themselves from hear Justice Isa case.

Likewise, the matter was referred to former CJP Khosa to form full court in this case. A 10-judge full court led by Justice Bandial heard petitions against presidential reference. There was a split among judges on different law points during the hearing.

Sarina Isa, appeared in the court through video link on June 18, 2020 and explained how she bought the properties which, she said, were equal in worth of a one kanal plot in some posh locality of Islamabad or Karachi.

The court on June 19, 2020 unanimously quashed presidential reference as well as the Supreme Judicial Council (SJC) proceedings that were started on the basis of the reference.

However, seven out of the ten judges referred the matter to the Federal Board of Revenue (FBR) for initiating tax proceedings against Justice Isa’s spouse and children for not disclosing their UK properties to the tax authorities while filing their returns. Certain guidelines were given to the FBR authorities to complete the inquiry and submit the report in the SJC.

However, three judges, while quashing the reference, did not endorse the majority view: referring the matter to the FBR. Out of the three judges, Justice Yahya Afridi dismissed Justice Isa’s petition but allowed superior bars petitions against the reference.

No reasoning was given in the majority order. In the meanwhile, Justice Isa, his wife Sarina Isa and superior bars filed review petitions against the June 19 order.

However, the review was not fixed for four months and FBR was allowed to proceed in view of the June 19 order.

In September, the FBR submitted report in the Supreme Judicial Council. When certain findings were passed against Sarina Isa then the apex court unveiled the detailed verdict of the majority judges after four months on October 23, 2020.

Majority Judgment

The detailed judgment authored by Justice Bandial held that presidential reference filed against Supreme Court judge Justice Qazi Faez Isa is “tainted with mala fide in law,” while making strong comments against President Arif Alvi, Law Minister Dr Farogh Naseem and the former attorney general for Pakistan (AGP) Anwar Mansoor Khan.

Although the preparation and framing of the reference against the petitioner [Justice Isa] is not patently motivated with malice in fact, the scale and degree of the illegalities are such that the reference is deemed to be tainted with mala fide in law.

“For this reason, the reference is hereby quashed,” said the 173-page detailed judgment authored by future Chief Justice of Pakistan Umar Ata Bandial and endorsed by six more judge.

Crux of the ruling is that the majority judges quashed the presidential reference on the basis of ‘malafide in law’ and not ‘malafide in facts.’

There is no adverse finding against the military establishment. There are harsh comments about President Dr Arif Alvi, Minister for Law Dr Farogh Naseem and the former AGP Anwar Mansoor Khan. The court has, however, stopped short of passing directions against them.

The judgment did not endorse Justice Isa contention on malafide in facts, surveillance of his family members, legality of the Assets Recovery Unit (ARU) and alleged media campaign against him etc.

The judgment noted that absence of malice in fact in the filing of the reference is reaffirmed by the petitioner’s admission that the London properties are indeed owned by his wife and children.

“This is because it is now well established in other areas of the law that an allegation of malice in fact gets defeated if it is proved that a complaint levelled against a person is true,” stated the judgement. “Accordingly, we hold that the allegations of malice in fact levelled by the petitioner against the respondents fail.”

The court, also rejecting Justice Isa allegation about surveillance of his family members, noted that surveillance primarily involves the monitoring or recording of a person’s movements, conversations or other activities and communication. “However, in the present case the learned counsel for the petitioner has not produced any evidence before us which demonstrates that either the petitioner or his family has been monitored or their communications have been intercepted.”

The court also declared that there is neither any fatal defect in creation of the ARU nor is there any unlawfulness in the appointment of Mirza Shahzad Akbar as the PM’s aide on accountability. The majority judgment said that ownership of the London properties is not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad require explanation. “Otherwise, an unexplained investment by the spouse of a judge of the superior courts, who is a holder of public office, compromises the integrity of the learned judge and ultimately the probity and credibility of the institution which he serves,” said the judgment.

It said the court adopted an impartial and transparent route of allowing Sarina Isa and her children to disclose the source of their funds to the relevant authorities, namely, the FBR.

Financial transparency

Majority judgment set higher standards of accountability for superior judiciary judges and their family members. The court held that judges were answerable for the financial interests of their family members.

The judgment had accepted federal government lawyer Dr Farogh Naseem’s arguments on the principle of proximity by declaring that judges were supposed to be aware of the financial interests of their family members.

However, if they do not, then they are expected to make reasonable efforts to acquire such information, more so when they are questioned by a competent forum about it, according to the judgment authored by Justice Umar Ata Bandial.

 

The detailed verdict referred to perks and privileges of judges and their family members during service and after retirement.

It read that these entitlements of a judge, which they shared with their family (their spouse and family members who were either dependent on them or with whom they have financial dealings) also carried certain responsibilities and obligations.

 

“One such obligation is the duty to enjoy these privileges with dignity, probity and discretion. Apart from the material benefits enjoyed by a judge’s family members during and after his service, they also receive an advantage from the respect and recognition extended, through association, by people who interact with them," it added.

 

The court observed that in these circumstances, the family members of a judge were required to be careful (financially, socially and politically), moderate and fair in their dealings and exchange with others to avoid controversies that might embarrass the judge.

 

“Although these responsibilities are shared by family members of all public office holders, they apply with particular force to family members of judges as the latter are expected to be the embodiment of a person who is God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed,” the verdict read while referring to Article II of Judges Code of Conduct.

 

Minority view

 

Justice Maqbool Baqar and Justice Syed Mansoor Ali issued their separate notes wherein they held that presidential reference against Justice Qazi Faez Isa was tainted with both mala fide of law and mala fide of facts.

 

Justice Baqar said there is absolutely no justification for issuing directions and guidelines to the FBR and the directions are clearly beyond the scope of the petition allowed/disposed of through the short order.

 

Another judge, Justice Syed Mansoor Ali Shah held that if the court start reading the events after the Faizabad dharna judgment [authored by Justice Isa], one is compelled to conclude that the judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power.”

 

The judge also referred to the review petitions filed against the Faizabad verdict in the apex court by a number of petitioners including the ruling PTI. In the Faizabad verdict, Justice Isa had highlighted the alleged role of intelligence agencies in creating political unrest in the country.

 

He said the vengeance and resentment against Justice Isa is more visible from the strange and unprecedented assertions made for his removal on the ground of misconduct in the review petitions.

 

Regarding complainant Abdul Waheed Dogar, Justice Shah said that his status was that of a complainant, and not of a journalist. It is no rocket science to put the facts together to discern that the complainant was fed the information to generate the complaint. “Whoever fed him the information are the real actors of this saga," he noted.

 

 

Before the retirement of Justice Faisal Arab, a seven-member larger bench led by Justice Bandial took up review petitions against the court June 19 order. However, same could not be proceeded as Justice Isa’s counsel Muneer A Malik sought time to file additional grounds after issuance of detailed judgment. Later, when the six-member larger bench resumed the hearing, Justice Isa's counsel contended that same number of bench should hear review petitions. He stated that dissenting judges should be made part of the larger bench. The order was reserved on his application.

 

After a couple of months, the court announced that the same bench should hear review petitions. The matter was referred to CJP for constitution of new bench.

 

When a 10-member larger bench led by Justice Bandial resumed the hearing of the review petitions in February, Justice Isa himself along with his wife appeared before the bench. He stated that his counsel Muneer A Malik is unwell as he himself wants to argue the case. The court allowed him to plead his case.

 

Firstly, Justice Isa gave arguments on his application for live broadcast of his case. However, his plea was rejected in April by a six out of the 10 judges.

 

Similarly, the bench started hearing on review petitions against the June 2019 order. Many lawyers were not in favour of Justice Isa arguing his own case. However, they were proved wrong as the apex court by majority of 6 to 4 on April 26, allowed review petitions and overruled the June 2019 order.

 

Implications of the Justice Qazi Faez Isa case

 

An unfortunate aspect of Justice Isa’s case worth noting is also that the executive authorities used myriad tactics to control the media. Even electronic media showed restraint in fully covering the proceedings related to the Justice Isa case.

 

Justice Isa’s case has profound implications on judiciary as by allowing review petitions, majority judges has secured independence of judges from external forces, which always try to manipulate the judicial proceedings in high profile cases. Senior lawyers expect that detailed judgment in review case will create deterrence against those forces, which attack on the independence of judges. Likewise after the judgment, the executive authorities may think several times before trying to conspire against judges.

 

Likewise, removal of a judge who belongs to the province of Balochistan might have dreadful consequences into itself.

 

The last two years, a split among top judges of the country was witnessed. Even the judges started to give guidelines to each other through judgments. Likewise, during the hearing of review petitions, unpleasant scenes were also witnessed, when harsh words were exchanged with each other. Now more than ever, there is a need for judges to maintain friendly relationship and harmony in the interest of institution. Chief Justice of Pakistan Gulzar Ahmed should also play his role to redress genuine grievances of judges.

Likewise, after the recent decision, accountability of judges will also be a challenge for the superior judiciary. The June 19, 2020 ruling has set higher standards for the judges and their families and now that this judgment has been overturned, all eyes are on the detailed judgment wherein the court will give reasons as how it overturned the June 2019 order.

Similarly, senior lawyers believe that the real test of Justice Isa has only just begun and all eyes will be on him to see how he will proceed in matters related to the PTI government. A government functionary hoped that Justice Isa while deciding cases will not hold any personal grudge against any executive authority.

Sindh High Court Bar (SHCB) Association President Salahuddin Ahmed said the majority judgment vindicates the stance of Justice Isa and Sarina Isa and all bar associations in Pakistan.

“[We] had argued that the entire case against Justice Isa was a mala fide conspiracy to punish him for the Faizabad dharna judgment in which he exposed elements of the deep state and designed to intimidate and subjugate the judiciary,” said the SHCB official in a statement. “Clearly, the government received terrible advice in pursuing this matter and, at very minimum, Law Minister Farogh Naseem and SAPM Mirza Shehzad Akbar should accept the responsibility and tender their resignations.” Ahmad hoped that regardless of what has gone by, all the judges including Justice Isa will be able to put aside their differences and come together to repair and restore the Supreme Court’s prestige and moral authority.

“Going forward, the Supreme Court must present a united face to those who would seek to undermine its independence without harboring any illusions about the identity of such people," says SHCBA president.

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